Threatened by renewables, the coal and gas sectors have promoted false and misleading claims to get consumers and investors back onside. Instead, they have got the attention of consumer watchdogs that are committed to cracking down on greenwashing.
A complaint filed with the Australian Competition and Consumer Commission (ACCC) against NSW Mining comes amid an increase in litigation and enforcement action taken against companies that have turned to greenwashing to win over consumers and investors.
NSW Mining, or the NSW Minerals Council, was accused of allegedly misleading consumers with a claim that coal would be needed “for many years to come”, despite renewables being on track to represent 82 per cent of the energy market by 2030.
The advertisements in The Coalface newspaper and on a Mining Responsibly website have made the argument for coal’s longevity allegedly without “clarifying the environmental costs of doing so”.
Further, according to the complaint filed by the Environmental Defenders Office (EDO), on behalf of its client Climate Integrity, the statements should be considered against the reality that black and brown coal’s position in the national energy market has decreased from 85.6 per cent in 2008 to just 55.5 per cent in 2024.
By publishing the advertisements, NSW Mining have been accused of breaching three sections of the Australian Consumer Law.
Kirsty Ruddock, managing lawyer at EDO, told Lawyers Weekly the renewable energy future “is definitely happening whether they like it or not”.
“They are threatened by the existence of renewables and the speed in which renewables are being rolled out to replace coal and gas, and to some extent that’s why we’re seeing this type of advertising, to sort of cement their role for longer in the industry,” Ruddock explained.
In addition to the forecasted shifts within the Australian energy sector, export markets have also begun to phase out coal. For example, China has committed to begin from 2026, in Hong Kong it will be phased out by 2035, Vietnam by 2040, and Korea has planned to remove 75 per cent of the country’s coal-fired plants by 2039.
Under the Paris Agreement, the European Union and 25 countries, including Australia, issued a call to action to end the investments in new coal-fired infrastructure. Under the legally binding commitment, the agreement intends to limit global warming to 1.5 degrees.
“It’s quite important at this juncture that while those decisions are being made, to make sure that kind of misinformation is called out and people understand the background and the legal consequences if NSW Mining and other companies that are employing these [greenwashing] tactics are found guilty,” Ruddock said.
Claire Snyder, executive director of Climate Integrity, said if the public is not given clear information on the “extremely harmful impacts” of coal on their health, the environment, and its role in climate change, “they can’t make informed decisions”.
“When it comes to energy and climate change, we see that fossil fuel companies and industry associations are spreading disinformation with the intention to downplay the harms of their products and the extreme risks they pose to society, as well as greenwash their brands or industries,” Snyder told Lawyers Weekly.
“We have laws to protect the public from misleading or deceptive conduct and it’s critical these laws are upheld.”
The ACCC have prioritised greenwashing claims both online and in the courtrooms. For the former, its website extensively details the importance of truthful and accurate environmental claims, encourages businesses to be “direct and open”, and explains how consumers can lodge greenwashing complaints.
As for the latter, the ACCC filed Federal Court action against Australian Gas Networks Limited in June for allegedly false and misleading claims made in its “Love Gas” campaign. The watchdog took particular issue with the idea the network could overcome significant barriers to distribute renewable gas to households.
Ruddock explained it was allegedly misleading to claim the gas being provided to households was renewable when the reality is that only a small percentage of this renewable gas can be put into the pipeline along with other types of gas “without it blowing up”.
ACCC chair Gina Cass-Gottlieb said businesses “must take care” when promoting emissions-reduction measures that their claims can be supported by evidence, “and that they are realistic about emerging energy technologies and when changes are likely to be achieved”.
“Misleading claims not only break the trust of consumers, they also breach the Australian Consumer Law,” Cass-Gottlieb said.
In September 2024, the Australian Securities and Investments Commission’s (ASIC) Federal Court greenwashing action against Vanguard Investments Australia resulted in a record $12.9 million penalty for making misleading claims about its environmental, social, and governance (ESG) exclusionary screens.
ASIC deputy chair Sarah Court said the penalty was the “highest yet” for greenwashing conduct, which poses a “serious threat to the integrity of the Australian financial system, and remains an enforcement priority for ASIC”.
It followed the commissioner’s successful greenwashing outcome in civil penalty proceedings brought against Mercer Super for misleading statements about the sustainable nature and characteristics of its superannuation investment options.
Ad Standards, a self-regulatory body for advertising and marketing complaints, this year introduced its AANA Environmental Claims Code to set a “higher benchmark for environmental claims”. To date, six cases were assessed under the new code and two breaches were determined, both related to the promotion of gas energy.
There are many more examples, including Energy Australia’s apology to customers for the greenwashing of its Go Neutral gas project, and Climate Integrity’s referral of Qantas to the regulator for its “Fly Carbon Neutral Product” in 2024. While no action has yet been taken, Snyder said she was confident it was corporate greenwashing.
Government action has also been taken, with the environment and communications references committee taking on a senate inquiry and report into greenwashing by next June. The inquiry will investigate the impact of these claims on consumers, regulatory examples, advertising standards, and legislative options.
Ruddock said the regulatory bodies have been prioritising these actions “because it’s really important that you know the information is correct, that you know consumers and investors are really understanding what they’re investing in”.
In NSW Mining’s case, they could be facing penalties in the millions of dollars, particularly if the ACCC establishes the damage that may have allegedly been caused to the renewable energy sector.
“There’s major transitions going on in our economy and a lot at stake in terms of the people involved, so we have seen a rise in misinformation. It goes to the heart of competition – the gas and coal companies are very keen to keep promoting their own products, but they do that in a misleading way that can cause really significant damage on their competitors in the renewable space,” Ruddock said.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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